Borough of Milton v. Densberger
| Decision Date | 21 October 1998 |
| Citation | 719 A.2d 829 |
| Parties | The BOROUGH OF MILTON, Appellant, v. Mark DENSBERGER and Zoning Hearing Board of the Borough of Milton. |
| Court | Pennsylvania Commonwealth Court |
Robert E. Benion, Milton, for appellant.
Michael Dennehy, Danville, for appellees.
Before DOYLE and PELLEGRINI, JJ., and RODGERS, Senior Judge.
The Borough of Milton (Borough) appeals from an order of the Court of Common Pleas of Northumberland County, reversing an order of the Borough's Zoning Hearing Board (ZHB) which had denied the appeal of Mark Densberger from an enforcement notice issued by the Borough.
The property in question is located in the R1-MD zoning district of the Borough, an area of the Borough designated as a Floodway District, which is subject to a Floodplain Ordinance (Ordinance). Section 5.1(D)(3)(b) of the Ordinance provides as follows:
The following shall not be placed or caused to be placed in the designated Floodway: fences, except two-wire fences, other matter which may impede, retard or change the direction of the flow of water, or which will catch or collect debris carried by such water, or be placed where the natural flow of the stream or flood waters would carry the same downstream to the damage or detriment of either public or private property adjacent to the floodplain;
(Floodplain Ordinance of the Borough of Milton, § 5.1(D)(3)(b).) (Emphasis added.) In addition, the Borough requires any resident who desires to build on any property, or make substantial improvements to existing property, located in the Floodway District to obtain a permit, so that the Borough may make a preliminary assessment of whether the contemplated construction will be sufficiently resistant free in the event of a flood.
In the summer of 1994, Densberger removed a four-foot high steel mesh fence from his property and replaced it with a six-foot high wooden fence. Densberger did not obtain the required permit before doing so. By a decision and order dated August 3, 1995,1 the Borough's ZHB concluded that the wooden fence violated the Ordinance, denied Densberger's application for a variance from the requirements of the Ordinance and ordered him to remove the wooden fence. No appeal was taken from the ZHB's order, and, in the fall of 1995, Densberger removed the fence.
In November of 1995, however, Densberger erected a chain-link fence on the west and south sides of his property. As with the previous fence, Densberger did not obtain a permit before doing so. On December 28, 1995, the Borough, through the Borough Manager, sent an enforcement notice to Densberger advising him that the chain-link fence violated Section 5.1(D)(3)(b) of the Ordinance, indicating that he had until January 30, 1996, to comply with the Ordinance by removing the fence. The notice also advised Densberger of his right to appeal to the ZHB, which he did on January 29, 1996, and a hearing was scheduled before the ZHB on May 15, 1996.
During the hearing, the Borough presented the testimony of Joyce Stahl, the Borough's Zoning Officer. She testified concerning the previous fences that had been on Densberger's property, as well as the current chain-link fence. Ms. Stahl opined that, although the Ordinance did not define the term "two-wire fence," she understood the term to denote two wires running parallel to each other and attached to vertical posts at various intervals. Ms. Stahl further elaborated by stating that a two-wire fence is the type that might be used to keep farm animals confined in a pasture. Ms. Stahl concluded that Densberger's fence was not a two-wire fence. On cross-examination, Ms. Stahl conceded that Densberger's fence could be made of wire, although she had not actually touched it, and she also conceded that vertical posts did support the wires at various intervals, despite the fact that the wires crisscrossed instead of running parallel to one another. In addition to Ms. Stahl's testimony, the Borough also admitted several pictures of the current fence.
In response, Densberger testified in support of his appeal. Specifically, Densberger testified that he believed that the chain-link fence was necessary on his property because he has a pool and a dog and, therefore, needs the type of fence that will keep his dog inside his yard and keep neighboring children from having access to his pool. In addition, Densberger opined that he believed that the chainlink fence constituted a two-wire fence because it consisted of poles connected by strands of wire, despite the fact that there were multiple wires and that the wires crisscrossed, rather than running parallel. Finally, Densberger noted that, during a flood in early 1996, the chain link fence did not impede water or cause any debris to collect near his property. Densberger offered a video corroborating this statement.
By a decision and order dated June 27, 1996, the ZHB denied Densberger's appeal from the enforcement notice and found that the chain-link fence violated the Ordinance. In doing so, the ZHB adopted Ms. Stahl's interpretation of the term "two-wire fence." Densberger appealed from that order to the Court of Common Pleas of Northumberland County.
On appeal, Common Pleas, taking no additional evidence, sustained Densberger's appeal and dismissed the Borough's enforcement action against him. In doing so, Common Pleas concluded that the term "two-wire fence" was vague and ambiguous and noted that it could not discern the meaning of the term "two-wire fence." Accordingly, Common Pleas looked to the intent of the Ordinance to determine whether the chain-link fence complied with the Ordinance. Common Pleas concluded that the intent of the Ordinance was to prohibit any type of fence which would impede the flow of water during flood conditions or otherwise aggravate flood conditions by permitting debris to collect by the fence. Common Pleas determined that, although Densberger's previous fence did not comply with the Ordinance, the present chain-link fence did comply with the Ordinance. This appeal by the Borough ensued.
On appeal to this Court,2 the Borough argues: (1) Common Pleas erred in concluding that the term "two-wire fence," as it is used in the Ordinance, is vague and ambiguous; and (2) Common Pleas erred by concluding that the chain-link fence did not contravene the purpose of Section 5.1(D)(3)(b) of the Ordinance.
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